'What a disaster': Aggressive federal response in Portland raises legal questions

PORTLAND, Ore. – In one video, a man clad in black at a protest raises his arms and shakes his head as two men in green military fatigues walk toward him. Without a word, they grab his arm and take him to an unmarked van parked across the street.

In another video, a woman lies face down on the ground before a group of men in street clothes yank her to her feet and take her to an unmarked car. "Who is it? Who are you?" a bystander screams.

Before the car speeds away, one of the men says, "If you follow us, you will get shot. Do you understand me?"

The widely circulated videos, at the heart of a lawsuit filed by Oregon's attorney general against the Trump administration, raise questions about the legality of the federal government's aggressive response to the unrest in Portland, where protests over police brutality and racial injustice have stretched into several weeks.

The events could present a legal test on how far the federal government can go in asserting its authority in cities where federal assistance is neither requested nor, local political leaders say, desired.

"What they can’t do without an invitation from Portland and/or Oregon is attempt to enforce Oregon laws or Portland ordinances. Those are state and local responsibilities," said Michael Dorf, a constitutional law professor at Cornell University. "If the situation were such that you thought that the city of Portland was conspiring with people who are rioting and violating federal rights, then there might be authority for some federal action."

Officials from the Trump administration said federal officers and agents were deployed to Portland to protect federal properties and monuments.

Some of the videos and at least one protester's personal account of his brief detention suggest federal authorities have gone beyond that mandate, legal experts said. Officers have grabbed people off streets, arrested them without explaining or saying which agency they're from or which authority they work under – requirements that law enforcement officers, federal, state and local, are all supposed to follow, experts said.

"I find very plausible the protesters’ claims that the federal officers are not simply protecting federal property, and part of the reason for that is the president himself and the high-ranking officials in DHS have not made that the primary rationale," Dorf said, referring to the federal Department of Homeland Security.

The primary rationale, based on President Donald Trump's comments, is that cities besieged by "anarchists" failed to contain the chaos, so the federal government stepped in.

"They grab them, a lot of people in jail," Trump said Monday, praising the actions of federal officers in Portland.

In an interview with Fox News, White House chief of staff Mark Meadows acknowledged that the federal presence in Portland is no longer just about protecting statues.

"The statues are one thing, but it's really about keeping our communities," Meadows said.

Acting DHS Secretary Chad Wolf on Tuesday rejected allegations that authorities arrested people without cause as "offensive, hyperbolic and dishonest."

Calling the "smear attacks against our officers disgusting," Wolf maintained that officers have been properly identified and that the camouflage uniforms worn by tactical units are "completely appropriate" because they are the uniforms worn in their normal assignments.

'A bad fit'

The wide array of federal agencies involved has also raised questions. The Trump administration deployed 114 federal officers from the Customs and Border Protection, Immigration and Customs Enforcement, Federal Protective Service and U.S. Marshals Service, according to federal court records filed Tuesday.

Gil Kerlikowske, a CBP commissioner in the Obama administration and a longtime police chief, said deployments may not violate the law because many states authorized federal agents to enforce local statutes.

But he said the use of agents from the Border Patrol Tactical Unit, known as BORTAC, to assist urban police was "a totally bad fit" and appears to be nothing more than political theater for an audience of one: the president.

"It’s just not their role or expertise," Kerlikowske said. "These are people who are used to operating in a rural environment, not in a large city. I was shocked that BORTAC would be used."

"Policing in an urban area and policing civil disturbance is not anything they have experience or training for. What a disaster."

Houston Police Chief Art Acevedo, president of the Major Cities Chiefs Association, said the deployment of federal officers to cities, without an invitation from leaders, may run afoul of local laws.

"That may be something for the courts to decide," he said

Traditionally, mutual aid agreements between federal and local governments are meant to address specific law enforcement issues, such as drug trafficking, gun violence and terrorism, Acevedo said.

"When it comes to crowd control, that's not something that's in the federal government's wheelhouse. Using federal officers that way may put them at risk, as well as escalate the unrest," he said.

Federal officers do have the authority to arrest people outside federal properties or boundaries when there's probable cause that they've violated federal or state law. In Oregon, state law requires federal officers to have state certification and proper training, said Steve Vladeck, a constitutional law expert from the University of Texas-Austin.

It's unclear whether any of the federal officers in Portland have received such training, Vladeck wrote on Lawfareblog.com.

'We will not retreat'

Wolf contended that the units are there to protect federal property because of "a lack of action" by local leaders and law enforcement.

"We will not retreat," Wolf said. "We will take appropriate action to protect our facilities. If we left tomorrow, they would burn that (federal courthouse) down. What we have in Portland is different than we have in any other city."

Wolf rejected allegations that federal officers, many of them drawn from immigration enforcement duties along the border, patrolled the city without appropriate identification and rounded up protesters who did not present a threat.

"These police officers are not storm troopers," Wolf said.

Mark Morgan, acting commissioner of CBP, acknowledged that names have been removed from some officers' uniforms because their personal information was published on social media, putting them at risk.

He said all uniforms carry markings identifying officers as police or law enforcement. He described the use of unmarked vehicles as "standard procedure" and appropriate "especially under the circumstances."

He said the officers represent some of the "most highly trained" in the CBP. Morgan defended the use of BORTAC, saying the unit is trained to subdue rioting at DHS detention centers.

'Unprecedented' response

As state and local leaders mount a full resistance against the federal presence in Portland, the Trump administration is weighing a broad deployment of officers to Chicago and other cities nationwide.

The mayors of major cities, including Portland and Chicago, wrote a joint letter saying the federal presence fuels tensions instead of quelling them. The mayors said federal officers have blatantly disregarded local rules and expectations about how to interact with citizens.

A statement from the U.S. Conference of Mayors condemned the federal government's unrequested presence in Portland.

"There are many things the federal government can do to help cities and support local efforts, but sending in federal agents without any coordination with mayors and governors is not among them," the organization said.

The Trump administration's aggressive and militaristic response is "unprecedented," Dorf said, and goes against the federal government's long-standing role of assisting state and local efforts.

"The president is proposing the use of federal law enforcement officials all around the country not to protect federal interests that are distinctly under attack but simply to displace state and local enforcement," he said, adding that federal assistance usually comes in the form of money appropriated by Congress and dispensed to state and local authorities. "And it's all cooperative. This is not cooperative."

State officials have made clear their intent to challenge the federal government's actions. The Oregon attorney general asked a judge to bar federal authorities from using tactics state officials called a violation of protesters' rights.

"This is a democracy, not a dictatorship," Oregon Gov. Kate Brown said in a statement. "We cannot have secret police abducting people in unmarked vehicles. I can’t believe I have to say that to the president of the United States."

'Feds go home!'

In downtown Portland Monday night, activists repeatedly clashed with DHS officers protecting the federal courthouse.

"Feds go home! Feds go home!" activists chanted at the officers in body armor and gas masks outside the Mark O. Hatfield Federal Courthouse. "Whose streets? Our streets!"

Protesters threw plastic water bottles toward the armored officers, who pushed them back with volleys of tear gas, flash-bang grenades and pepper balls fired from paintball guns.

"The feds assaulted Americans here" was scrawled on a street near the courthouse.

Federal officers responded only when protesters tried to rip down or break plywood boards blocking the courthouse entrance. Officers ignored shouted questions and taunts from protesters.

Police had no visible presence in the area all evening and into the early hours of Tuesday.

Since the surge of federal officers this month, Wolf said there have been 43 federal arrests.

"I'm ready to pull my officers out of there when the violence stops," Wolf said.

A spokesman for the U.S. attorney's office in Portland said federal officers arrested, then released two people over the weekend.

Five were arrested Monday night on charges such as assault on a federal officer, creating a disturbance, failure to comply and trespassing.

"Ever since the feds showed up," said protester Ted Park, 31, "it’s been like war."

Protester Conner O’Shea, 30, said it’s hard for protesters to know exactly how many federal officers are on the street, but he and friends see "snatcher-style vehicles, unmarked vans, leaving the back of the federal building every night, and that’s been worrisome."

He said he worries that the events in Portland will happen in other cities.

"This is a testing ground, that’s what we’re telling people," he said.

Contributing: David Jackson in Washington, Lindsay Schnell in Portland

This article originally appeared on USA TODAY: Portland protests: Trump administration response raises legal questions